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1 Actions for annulment - Jurisdiction of the Community
judicature - Decision refusing public access to documents covered
by Title V of the Treaty on European Union
(EC Treaty, Arts 151(3) and 173 (now, after amendment, Arts 207(3)
EC and 230 EC); Treaty on European Union, Art. J.11 (Arts J to
J.11 of the Treaty on European Union have been replaced by Arts
11 EU to 28 EU); Council Decision 93/731)
2 Council - Right of public access to Council documents - Decision
93/731 - Refusal of a confirmatory application for access - Consideration
of the application - Obligation - Scope
(Council Decision 93/731, Arts 4 and 7(1))
3 Council - Right of public access to Council documents - Decision
93/731 - Exceptions to the principle of access to documents -
Protection of the public interest - International relations -
Decisions refusing access taken by the Council on the basis of
its political responsibilities - Judicial review - Scope - Limits
(Treaty on European Union, Arts J to J.11 (Arts J to J.11 of
the Treaty on European Union have been replaced by Arts 11 EU
to 28 EU); Council Decision 93/731, Art. 4(1))
4 Council - Right of public access to Council documents - Decision
93/731 - Exceptions to the principle of access to documents -
Where a decision refusing access is taken without first examining
the possibility of partial access (to data not covered by the
exceptions) - Unlawful
(Council Decision 93/731, Art. 4(1))
1 The Court of First Instance has jurisdiction to determine an
action for annulment of a Council decision refusing access to
documents, even where the documents in question have been adopted
on the basis of provisions coming under Title V of the Treaty
on European Union concerning a common foreign and security policy.
Decision 93/731 on public access to Council documents applies
to all Council documents, irrespective of their content. Under
Article J.11(1) of the Treaty on European Union (Articles J to
J.11 of that Treaty have been replaced by Articles 11 to 28 EU),
acts adopted pursuant to Article 151(3) of the EC Treaty (now,
after amendment, Article 207(3) EC), which is the legal basis
for Decision 93/731, are applicable to measures within the scope
of Title V of the EU Treaty. Thus, in the absence of provisions
to the contrary, documents relating to Title V of the Treaty
on European Union are covered by Decision 93/731. Accordingly,
the fact that, under Article L of that Treaty (now, after amendment,
Article 46 EU), the Court of First Instance does not have jurisdiction
to assess the lawfulness of acts falling within Title V does
not exclude its jurisdiction to rule on public access to those
acts.
2 It follows from the scheme of Decision 93/731 on public access
to Council documents that a decision to reject a confirmatory
application for access, submitted pursuant to Article 7(1) of
that Decision, must be based on a genuine examination of the
particular circumstances of the case, the purpose of examining
a confirmatory application being to enable the Council to determine
whether disclosure of the document falls within one of the exceptions
set out in Article 4 of Decision 93/731 and whether the general
principle that the public should have access to Council documents
must therefore be displaced.
3 When, in the exercise of its discretion, the Council must determine
the possible consequences for the international relations of
the European Union, were a report prepared by the Working Group
on Conventional Arms Exports to be disclosed, it does so on the
basis of the political responsibilities conferred on it by Title
V of the Treaty on European Union. That being so, review by the
Court of First Instance of a decision refusing access to such
a report, on grounds of the public interest exception - with
regard, specifically, to international relations - provided for
in Article 4(1) of Decision 93/731 on public access to Council
documents, must be limited to verifying whether the procedural
rules have been complied with, whether the contested decision
is properly reasoned and the facts have been accurately stated,
and whether there has been a manifest error of assessment of
the facts or a misuse of powers.
4 The exceptions provided for in Article 4(1) of Decision 93/731
on public access to Council documents must be interpreted in
the light of the principle of the right to information and the
principle of proportionality. It follows that, before refusing
access to a document unconditionally, the Council is obliged
to examine whether partial access should be granted, that is
to say, access to the information not covered by the exceptions.
As regards the principle of the right to information, Decision
93/731 seeks to give effect to the principle of the largest possible
access for citizens to information with a view to strengthening
the democratic character of the institutions and the trust of
the public in the administration. Secondly, as regards the principle
of proportionality, the aim of protecting the public interest
with regard to international relations may be achieved even if
the Council does no more than remove, after examination, the
passages in the contested report which might harm international
relations.
Consequently, where the Council has not made an examination along
those lines, a Council decision refusing access to such a report
is vitiated by an error of law and must be annulled.
In Case T-14/98,
Heidi Hautala, Member of the European Parliament, residing in
Helsinki, represented by Onno W. Brouwer and Thomas Janssens,
of the Brussels Bar, with an address for service in Luxembourg
at the Chambers of Marc Loesch, 11 Rue Goethe,
applicant,
supported by
Republic of Finland, represented by Holger Rotkirch, Head of
the Legal Department, Ministry of Foreign Affairs, and Tuula
Pynnä, Legislative Adviser in that ministry, acting as Agents,
with an address for service in Luxembourg at the Finnish Embassy,
2 Rue Heinrich Heine,
and
Kingdom of Sweden, represented by Lotty Nordling, Director-General
of Legal Affairs, Ministry of Foreign Affairs, and Karin Kussak,
Kristina Svahn Starrsjö and Anders Kruse, Legal Advisers
in that ministry, acting as Agents, with an address for service
in Luxembourg at the Swedish Embassy, 2 Rue Heinrich Heine,
interveners,
v
Council of the European Union, represented by Jill Aussant, Director
in the Legal Service, and Giorgio Maganza and Martin Bauer, Legal
Advisers, acting as Agents, with an address for service in Luxembourg
at the office of Alessandro Morbilli, Manager of the Legal Affairs
Directorate, European Investment Bank, 100 Boulevard Konrad Adenauer,
defendant,
supported by
French Republic, represented by Kareen Rispal-Bellanger, Head
of Subdirectorate in the Legal Directorate of the Ministry of
Foreign Affairs, and Denys Wibaux, Foreign Affairs Secretary,
acting as Agents, with an address for service in Luxembourg at
the French Embassy, 8B Boulevard Joseph II,
intervener,
APPLICATION for annulment of the Council's decision of 4 November
1997 to refuse the applicant access to a document,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
(First Chamber),
composed of: B. Vesterdorf, President, J. Pirrung and M. Vilaras,
Judges,
Registrar: H. Jung,
having regard to the written procedure and further to the hearing
on 4 March 1999,
gives the following
Judgment
Legal background
1 The Final Act of the Treaty on European Union signed at Maastricht
on 7 February 1992 contains a Declaration (No 17) on the right
of access to information (hereinafter `Declaration No 17'), which
states:
`The Conference considers that transparency of the decision-making
process strengthens the democratic nature of the institutions
and the public's confidence in the administration. The Conference
accordingly recommends that the Commission submit to the Council
no later than 1993 a report on measures designed to improve public
access to the information available to the institutions.'
2 At the close of the European Council in Birmingham on 16 October
1992, the Heads of State and of Government issued a declaration
entitled `A Community close to its citizens' (Bull. EC 10-1992,
p. 9), in which they stressed the need to make the Community
more open. That commitment was reaffirmed by the European Council
in Edinburgh on 12 December 1992 (Bull. EC 12-1992, p. 7).
3 On 5 May 1993 the Commission addressed to the Council, the
Parliament and the Economic and Social Committee Communication
93/C 156/05 on public access to the institutions' documents (OJ
1993 C 156, p. 5). It contained the results of a comparative
survey on public access to documents in the Member States and
some non-member countries, and concluded that there was a case
for developing further the access to documents at Community level.
4 On 2 June 1993 the Commission adopted Communication 93/C 166/04
on openness in the Community (OJ 1993 C 166, p. 4), setting out
the basic principles governing access to documents.
5 At the European Council in Copenhagen on 22 June 1993, the
Council and the Commission were invited to `continue their work
based on the principle of citizens' having the fullest possible
access to information' (Bull. EC 6-1993, p. 16, point 1.22).
6 Within the framework of these preliminary steps towards implementing
the principle of transparency, the Council and the Commission
approved on 6 December 1993 a Code of Conduct concerning public
access to Council and Commission documents (OJ 1993 L 340, p.
41, hereinafter `the Code of Conduct'), aimed at establishing
the principles to govern access to documents held by them.
7 The Code of Conduct sets out the following general principle:
`The public will have the widest possible access to documents
held by the Commission and the Council.'
8 `Document' is defined as `any written text, whatever its medium,
which contains existing data and is held by the Council or the
Commission'.
9 The circumstances which may be relied on by an institution
as grounds for rejecting a request for access to documents are
listed in the Code of Conduct in the following terms:
`The institutions will refuse access to any document whose disclosure
could undermine:
- the protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections
and investigations),
- ...
They may also refuse access in order to protect the institution's
interest in the confidentiality of its proceedings.'
10 The Code of Conduct further provides:
`The Commission and the Council will severally take steps to
implement these principles before 1 January 1994.'
11 In order to put that undertaking into effect, the Council
adopted on 20 December 1993 Decision 93/731/EC on public access
to Council documents (OJ 1993 L 340, p. 43).
12 Article 4(1) of Decision 93/731 provides:
`Access to a Council document shall not be granted where its
disclosure could undermine:
- the protection of the public interest (public security, international
relations, monetary stability, court proceedings, inspections
and investigations),
...'.
Facts of the case
13 The applicant is a Member of the European Parliament.
14 On 14 November 1996 she put a written question to the Council
(Written Question P-3219/96, OJ 1997 C 186, p. 48) seeking clarification
of the eight criteria for arms exports defined by the European
Council in Luxembourg in June 1991 and in Lisbon in June 1992.
In particular, she asked the following questions:
`What will the Council do to put an end to violations of human
rights which are assisted by arms exports from EU Member States?
What are the reasons for the secrecy surrounding the guidelines
which the Council's Working Group on Conventional Arms Exports
has proposed to the political committee with a view to clarifying
the criteria?'
15 The Council answered on 10 March 1997, stating in particular:
`One of the eight criteria concerns the respect of human rights
in the country of final destination, an issue of concern to all
Member States. Exchanges between Member States on this and other
aspects of arms export policy take place within the Common Foreign
and Security Policy (CFSP) Working Group on Conventional Arms
Exports, which has been charged with giving particular attention
to the implementation of the eight criteria, with a view to reaching
a common interpretation thereof.
At its meeting of 14-15 November 1996, the Political Committee
approved a report from the Working Group on Conventional Arms
Exports, with a view to further enhancing the consistent implementation
of the common criteria. The Political Committee also agreed that
the Group should continue to follow this matter closely.
Actual decisions on the granting of export licences remain, however,
a matter for national authorities. The Council is therefore not
in a position to comment on individual export authorisations
or on national public information policies in this area.'
16 By letter of 17 June 1997, addressed to the Secretary-General
of the Council, the applicant asked to be sent the report mentioned
in the Council's answer (hereinafter `the contested report').
17 The contested report was approved by the Political Committee
but not by the Council. It was drawn up under the COREU special
European correspondence system - adopted by the Member States
and the Commission in 1995 within the framework of the CFSP in
application of Title V of the Treaty on European Union - and
was not distributed through the normal channels of distribution
of Council documents. In the Council's practice, the COREU network
is reserved for questions falling within Title V. Distribution
of documents transmitted via the COREU network is restricted
to a limited number of authorised recipients in the Member States,
the Commission and the General Secretariat of the Council.
18 By letter of 25 July 1997, the General Secretariat of the
Council refused access to the contested report under Article
4(1) of Decision 93/731, stating that it contained `highly sensitive
information disclosure of which would undermine the public interest,
as regards public security'.
19 By letter of 1 September 1997, the applicant made a confirmatory
application, in accordance with Article 7(1) of Decision 93/731.
20 The confirmatory application was considered by the Information
Working Party of the Committee of Permanent Representatives at
its meeting of 24 October 1997 and by the members of the Council
at its meeting of 3 November 1997, following which the necessary
simple majority considered that a negative reply should be given.
Four delegations were in favour of releasing the document.
21 By letter of 4 November 1997 (hereinafter `the contested decision'),
the Council rejected the confirmatory application, in the following
terms:
`I refer to your letter of 1 September 1997 in which you make
a confirmatory application, pursuant to Article 7(1) of Decision
93/731/EC, for access to [the contested report].
Your application was reviewed by the Council on the basis of
an examination of the document in question.
As a result of this consideration, the Council has concluded
that disclosure of [the contested report] could be harmful for
the EU's relations with third countries.
Access to the document in question is therefore to be refused
by virtue of Article 4(1) of Decision 93/731/EC in order to protect
the public interest with regard to international relations.'
22 The contested report prompted the Council to adopt, on 8 June
1998, a code of conduct for arms exports. That code was published.
Procedure and forms of order sought by the parties
23 By application lodged at the Registry of the Court of First
Instance on 13 January 1998 the applicant brought the present
action.
24 By fax received at the Registry on 7 May 1998 the applicant
informed the Court that she waived submission of a reply.
25 By document lodged at the Registry on 5 June 1998 the French
Republic sought leave to intervene in support of the form of
order sought by the Council.
26 By documents lodged at the Registry on 15 June 1998 the Republic
of Finland and the Kingdom of Sweden sought leave to intervene
in support of the form of order sought by the applicant.
27 By order of 6 July 1998 the President of the First Chamber
of the Court of First Instance granted the applications for leave
to intervene.
28 The French Republic, the Kingdom of Sweden and the Republic
of Finland lodged their statements in intervention at the Registry
of the Court of First Instance on 19 August, 15 September and
16 September 1998 respectively.
29 By pleadings lodged at the Registry on 18 November 1998 the
main parties submitted their observations on the statements in
intervention.
30 On hearing the report of the Judge-Rapporteur, the Court of
First Instance (First Chamber) decided to open the oral procedure
without any preparatory inquiry.
31 The hearing took place on 4 March 1999. The parties presented
oral argument and answered the oral questions put by the Court.
32 The applicant asks the Court to:
- annul the contested decision;
- order the Council to pay the costs, including those of any
interveners.
33 The Council contends that the Court should:
- dismiss the application as unfounded;
- order the applicant to pay the costs.
34 The Republic of Finland and the Kingdom of Sweden, interveners,
ask the Court to annul the contested decision.
35 The French Republic, intervener, contends that the Court should:
- dismiss the application;
- order the applicant to pay the costs.
Jurisdiction of the Court of First Instance
Arguments of the parties
36 The Council submits that the present case raises the same
questions concerning the Court's jurisdiction as those raised
in Case T-174/95 Svenska Journalistförbundet v Council [1998]
ECR II-2289. The contested report deals exclusively with questions
falling within Title V of the Treaty on European Union, the provisions
of which are expressly excluded from the jurisdiction of the
Court of Justice by Article L of that Treaty (now, after amendment,
Article 46 EU). At the hearing, however, the Council stated that
it was not raising this plea of inadmissibility and left it to
the Court of First Instance to consider the question of its jurisdiction
in the present case.
37 The French Government submits that the application is not
within the jurisdiction of the Court. By virtue of Article L
of the Treaty on European Union, it considers that where the
Council has decided to apply Decision 93/731 to documents falling
within Title V, its decisions on access to such documents also
come under Title V and, as such, may not be the subject of an
action under Article 173 of the EC Treaty (now, after amendment,
Article 230 EC).
38 The applicant submits that the Court of First Instance has
jurisdiction to rule in an action challenging a decision on access
to a document adopted on the basis of Title V of the Treaty on
European Union.
39 The Finnish and Swedish Governments support the applicant's
arguments.
Findings of the Court
40 It should be noted, first, that under Article 113 of its Rules
of Procedure the Court may at any time of its own motion consider
whether there exists any absolute bar to proceeding with a case.
41 The fact that the contested report comes under Title V of
the Treaty on European Union has no effect on the jurisdiction
of the Court. The Court has already held in Svenska Journalistförbundet,
paragraphs 81 and 82, that Decision 93/731 applies to all Council
documents, irrespective of their content. It also held that,
under Article J.11(1) of the Treaty on European Union (Articles
J to J.11 of that Treaty have been replaced by Articles 11 to
28 EU), acts adopted pursuant to Article 151(3) of the EC Treaty
(now, after amendment, Article 207(3) EC), which is the legal
basis for Decision 93/731, are applicable to measures within
the scope of Title V of the EU Treaty.
42 Thus, in accordance with the conclusion reached in Svenska
Journalistförbundet (paragraph 85), documents relating to
Title V of the Treaty on European Union are covered by Decision
93/731 in the absence of provisions to the contrary. The fact
that under Article L of that Treaty the Court of First Instance
does not have jurisdiction to assess the lawfulness of acts falling
within Title V thus does not exclude its jurisdiction to rule
on public access to those acts.
Substance
43 The applicant puts forward three pleas in law to support her
application: first, infringement of Article 4(1) of Decision
93/731; second, infringement of Article 190 of the EC Treaty
(now Article 253 EC); third, breach of the fundamental principle
of Community law that citizens of the European Union must be
given the widest and fullest possible access to documents of
the Community institutions, and of the principle of protection
of legitimate expectations.
44 The Swedish Government intervenes in support of the first
two pleas. The Finnish Government intervenes in support of the
second plea only. The French Government intervenes in support
of the Council to contest the applicant's first two pleas.
The first plea: infringement of Article 4(1) of Decision 93/731
Arguments of the parties
45 The applicant submits, first, that the Council interpreted
and applied the exception relating to protection of the public
interest concerning international relations in a way which was
too wide and hence unlawful.
46 Citing Case T-105/95 WWF UK v Commission [1997] ECR II-313,
the applicant submits that the widest possible access to documents
must be ensured. The exception relating to protection of international
relations should be interpreted and applied strictly (Case T-124/96
Interporc v Commission [1998] ECR II-231, Case T-83/96 Van der
Wal v Commission [1998] ECR II-545, currently under appeal to
the Court of Justice (Case C-189/98 P), and Svenska Journalistförbundet).
47 In her opinion, the Council made no specific assessment, or
at least no adequate one, of the impact which access to the report
in question might have on the public interest in general and
international relations in particular. The way in which the Council
treated her confirmatory application also shows that the contested
decision was taken without any genuine debate or analysis.
48 Second, the applicant disputes that disclosure of the contested
report could harm the public interest with regard to international
relations. The report concerned only the implementation and interpretation
of publicly known criteria governing arms exports.
49 Third, the applicant submits that the Council infringed Article
4(1) of Decision 93/731 by refusing access to those parts of
the document which are not covered by the exception relating
to protection of the public interest.
50 The Swedish Government submits that it is for the Council,
in each individual case, to consider whether a document contains
information which, if disclosed, could undermine protection of
the public interest. Only if that examination shows that to be
the case is the Council obliged to refuse access to the information
under Article 4(1) (Svenska Journalistförbundet, paragraph
112).
51 In the present case, neither the Information Working Party
nor the Council considered the confirmatory application in accordance
with those principles.
52 It submits, next, that to interpret the exception in Article
4(1) as meaning that if part of the document requested may harm
international relations, that suffices for the other parts of
the document, which the public would otherwise have been able
to see, to be excluded from disclosure goes beyond what is necessary
for protecting the public interest (see, to that effect, Case
C-321/96 Mecklenburg v Kreis Pinneberg [1998] ECR I-3809, paragraph
25, on the interpretation of certain exceptions in Council Directive
90/313/EEC of 7 June 1990 on the freedom of access to information
on the environment (OJ 1990 L 158, p. 56)). The final subparagraph
of Article 3(2) of that directive provides, moreover, that information
held by the public authorities is to be supplied in part where
it is possible to separate out the confidential parts.
53 On this point, the Swedish Government states that the Council
has already granted partial access to a document (see the Secretary-General's
report on implementation of Decision 93/731 for the years 1994
and 1995, Document 8330/96, p. 12).
54 Finally, as regards the Council's argument that the words
`access to ... documents' in Decision 93/731 prevent it from
granting partial access to a document which has been requested,
the Swedish Government replies that it is not the basic rule
in Article 1 of that decision which must be interpreted strictly
but the exception in Article 4(1).
55 The Council submits that under Article 4(1) of Decision 93/731
it is obliged to refuse access to documents whose disclosure
could undermine in particular the protection of the public interest,
which is manifestly affected where public security, international
relations, monetary stability, court proceedings and inspections
and investigations are involved.
56 It states that, contrary to the applicant's assertion, it
carried out a specific and adequate assessment of the implications
of her request, which received particular attention.
57 It observes that assessment of the harm which might be caused
to the public interest by the disclosure of one of its documents
is within its sole discretion and the Court cannot substitute
its own assessment.
58 It goes on to state that after thorough debate it decided
not to allow partial communication of its documents. In its view,
Decision 93/731 merely provides for the public to have access
to `documents' of the Council. The Council therefore has to examine
requests for access with respect to the original form of its
documents, and is not obliged to adapt them so as to make their
disclosure possible. Furthermore, the deletion of certain passages
would have the consequence that an applicant would receive not
an authentic document but fragmentary information, which would
run counter to the objective of transparency pursued by Decision
93/731.
59 At the hearing, the Council confirmed that it had adopted
that position even though Decision 93/731 does not expressly
prohibit partial communication. It submitted that the example
referred to by the Swedish Government (see paragraph 53 above)
was only an isolated case. The approach taken by the General
Secretariat in that case was never followed at Council level.
60 According to the Council, it is possible, contrary to the
Swedish Government's view, that certain categories of documents
necessarily imply by their very nature that their disclosure
may harm the public interest (see, to that effect, the order
of the President of the Court of First Instance of 3 March 1998
in Case T-610/97 R Carlsen and Others v Council [1998] ECR II-485,
paragraphs 46 and 47). That applies in particular to documents
drawn up within the COREU system. These are documents which by
their nature are internal working instruments whose disclosure
could compromise the proper functioning of the CFSP. However,
the Council stresses that the contested decision was not taken
merely because the report had passed through the COREU system;
in fact it carried out an examination of its content.
61 On this point, the reference by the Swedish Government to
Svenska Journalistförbundet, paragraph 112, is irrelevant
in the present case. In that case the Council refused access
to sixteen different documents without specifying, for each of
those documents, whether it relied on the mandatory exception
on the ground of protection of the public interest (public security,
etc.) or the discretionary exception on the ground of confidentiality
of its proceedings.
62 The French Government submits that the Council correctly applied
Article 4(1) of Decision 93/731, as interpreted by the Court
of First Instance in Case T-194/94 Carvel and Guardian Newspapers
v Council [1995] ECR II-2765.
63 As regards partial communication of the document sought, it
adds that the method used in some Member States of deleting certain
passages which are considered confidential when granting access
to a document cannot be applied satisfactorily in the case of
access to documents of the Community institutions. Moreover,
such a method would not comply with the provisions of Decision
93/731.
64 Finally, the French Government submits that the procedure
followed in adopting the contested decision was correct.
Findings of the Court
65 The three arguments put forward by the applicant in support
of her first plea in law should be considered in turn. It should
thus be determined, first, whether the confirmatory application
was given adequate consideration by the Council; second, whether
access to the contested report could be refused by reference
to the public interest concerning international relations; and
third, whether the Council was obliged to consider whether it
could grant partial access, authorising disclosure of the parts
of the document not covered by the exception on grounds of protection
of the public interest.
66 As to the first argument, it is not disputed that the Council
carried out some examination of the application. However, the
applicant and the Swedish Government submit that that examination
was not adequate in view of the requirements of the handling
of a confirmatory application and the application of Article
4 of Decision 93/731.
67 The purpose of examining a confirmatory application is to
enable the Council to determine whether disclosure of the document
asked for falls within one of the exceptions set out in Article
4 of Decision 93/731 and consequently whether the general principle
that the public have access to Council documents must be displaced.
It thus follows from the scheme of Decision 93/731 that a decision
to reject a confirmatory application must be based on a genuine
examination of the particular circumstances of the case.
68 As stated in paragraph 20 above, the confirmatory application
was considered by the Information Working Party at its meeting
of 24 October 1997 and by the members of the Council at its meeting
of 3 November 1997, following which the necessary simple majority
considered and voted that a negative reply should be given. The
Council then, by the contested decision, rejected the applicant's
confirmatory application on the ground of the exception relating
to protection of the public interest concerning international
relations.
69 It follows that the confirmatory application was indeed given
adequate consideration by the Council. In any event, the mere
assertions made by the applicant and the Swedish Government do
not suffice as such to show that in the present case that consideration
was inadequate or inappropriate having regard to the objectives
described above.
70 Consequently, the first argument put forward by the applicant
and the Swedish Government must be rejected.
71 As to the applicant's second argument, disputing that access
to the contested report would harm the public interest concerning
international relations, it must be remembered that the Council's
discretion is connected with the political responsibilities conferred
on it by Title V of the Treaty on European Union. It is on that
basis that the Council must determine the possible consequences
which disclosure of the contested report may have for the international
relations of the European Union.
72 In those circumstances, review by the Court of First Instance
must be limited to verifying whether the procedural rules have
been complied with, the contested decision is properly reasoned,
and the facts have been accurately stated, and whether there
has been a manifest error of assessment of the facts or a misuse
of powers.
73 As may be seen from paragraph 17 above, the contested report
was drawn up within the COREU system, and in the Council's practice
the COREU network is reserved for questions falling within Title
V of the Treaty on European Union. Moreover, it appears from
the Council's answer of 10 March 1997 (see paragraph 15 above)
that the contested report contains exchanges of views between
the Member States on respect for human rights in the country
of final destination. Finally, as the Council observed in its
defence (point 44), the contested report was produced for internal
use and not with a view to publication, and so contains formulations
and expressions which might cause tension with certain non-member
countries.
74 In those circumstances, there is no reason to fault the Council's
assessment. The applicant's second argument must therefore be
rejected.
75 As regards the third argument, which is supported by the Swedish
Government, namely that the Council infringed Article 4(1) of
Decision 93/731 by refusing to grant access to the passages in
the contested report which are not covered by the exception based
on protection of the public interest, it should be observed that
the Council considers that the principle of access to documents
applies only to documents as such, not to the information contained
in them.
76 It is thus for the Court to verify whether the Council was
obliged to consider whether partial access could be granted.
Since this is a question of law, review by the Court is not limited.
77 Decision 93/731 is a measure of internal organisation adopted
by the Council on the basis of Article 151(3) of the EC Treaty.
In the absence of specific Community legislation, the Council
determines the conditions for dealing with requests for access
to its documents (see, to that effect, Case C-58/94 Netherlands
v Council [1996] ECR I-2169, paragraphs 37 and 38). Consequently,
if the Council so wished, it could decide to grant partial access
to its documents, under a new policy.
78 Decision 93/731 does not expressly require the Council to
consider whether partial access to documents may be granted.
Nor, as the Council accepted at the hearing, does it expressly
prohibit such a possibility.
79 In view of the above, the basis on which the Council adopted
Decision 93/731 must be borne in mind for the purpose of interpreting
Article 4 of that decision.
80 Declaration No 17 recommended that the Commission should submit
to the Council no later than 1993 a report on measures designed
to improve public access to the information available to the
institutions. That commitment was restated at the European Council
in Copenhagen on 22 June 1993, which invited the Council and
the Commission to `continue their work based on the principle
of citizens' having the fullest possible access to information'.
81 In the preamble to the Code of Conduct, the Council and the
Commission refer expressly to Declaration No 17 and the conclusions
of the European Council in Copenhagen as the basis for their
initiative. The Code of Conduct states the general principle
that the public will have the widest possible access to documents.
82 Furthermore, the Court of Justice stressed in Netherlands
v Council, paragraph 35, the importance of the public's right
of access to documents held by public authorities. The Court
of Justice noted that Declaration No 17 links that right with
`the democratic nature of the institutions'. In his Opinion in
that case ([1996] ECR I-2171, point 19), the Advocate General
stated, with reference to the individual right to information,
as follows:
`Instead, the basis for such a right should be sought in the
democratic principle, which constitutes one of the cornerstones
of the Community edifice, as enshrined now in the Preamble to
the Maastricht Treaty and Article F [of the Treaty on European
Union, now, after amendment, Article 6 EU] of the Common Provisions.'
83 The Court of First Instance recently held in Svenska Journalistförbundet,
paragraph 66, referring to Netherlands v Council, that:
`The objective of Decision 93/731 is to give effect to the principle
of the largest possible access for citizens to information with
a view to strengthening the democratic character of the institutions
and the trust of the public in the administration.'
84 Next, it should be noted that where a general principle is
established and exceptions to that principle are then laid down,
the exceptions should be construed and applied strictly, in a
manner which does not defeat the application of the general rule
(see, to that effect, WWF UK v Commission, paragraph 56, and
Interporc v Commission, paragraph 49). In the present case, the
provisions to be construed are those of Article 4(1) of Decision
93/731, which lists the exceptions to the above general principle.
85 Furthermore, the principle of proportionality requires that
`derogations remain within the limits of what is appropriate
and necessary for achieving the aim in view' (Case 222/84 Johnston
v Chief Constable of the Royal Ulster Constabulary [1986] ECR
1651, paragraph 38). In the present case, the aim pursued by
the Council in refusing access to the contested report was, according
to the reasons stated in the contested decision, to `protect
the public interest with regard to international relations'.
Such an aim may be achieved even if the Council does no more
than remove, after examination, the passages in the contested
report which might harm international relations.
86 In that connection, the principle of proportionality would
allow the Council, in particular cases where the volume of the
document or the passages to be removed would give rise to an
unreasonable amount of administrative work, to balance the interest
in public access to those fragmentary parts against the burden
of work so caused. The Council could thus, in those particular
cases, safeguard the interests of good administration.
87 Accordingly, Article 4(1) of Decision 93/731 must be interpreted
in the light of the principle of the right to information and
the principle of proportionality. It follows that the Council
is obliged to examine whether partial access should be granted
to the information not covered by the exceptions.
88 As appears from paragraph 75 above, the Council did not make
such an examination, since it considers that the principle of
access to documents applies only to documents as such and not
to the information contained in them. Consequently, the contested
decision is vitiated by an error of law and must therefore be
annulled.
89 It follows that there is no need for the Court to rule on
the two other pleas in law put forward by the applicant in support
of her application.
Costs
90 Under Article 87(2) of the Rules of Procedure, the unsuccessful
party is to be ordered to pay the costs if they have been applied
for in the successful party's pleadings. Since the Council has
been unsuccessful, it must be ordered to pay the costs, having
regard to the applicant's pleadings. Under Article 87(4) of those
Rules, Member States and institutions which intervene in the
proceedings are to bear their own costs. In those circumstances,
the Republic of Finland, the Kingdom of Sweden and the French
Republic must bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE
(First Chamber),
hereby:
1. Annuls the Council's decision of 4 November 1997 refusing
the applicant access to the report of the Working Group on Conventional
Arms Exports;
2. Orders the Council to pay the costs;
3. Orders the Republic of Finland, the Kingdom of Sweden and
the French Republic to bear their own costs. |
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